Osorio v. Kenart Realty, Inc.

• Citation: 42 Misc.3d 5,977 N.Y.S.2d 553,2013 N.Y. Slip Op. 23361
• Parties: Angel OSORIO, Appellant, v. KENART REALTY, INC. and Equistar Enterprises, Inc., Defendants, and Madison 45 Company, Pizza–Del, Inc. Doing Business as Eurostar Café and Pizza–Del, and 45th Street Bake Corp. Doing Business as Eurostar Café, Respondents.
• Decision Date: 16 October 2013
• Court: New York Supreme Court — Appellate Term

42 Misc.3d 5
977 N.Y.S.2d 553
2013 N.Y. Slip Op. 23361

Angel OSORIO, Appellant,
v.
KENART REALTY, INC. and Equistar Enterprises, Inc., Defendants,
and
Madison 45 Company, Pizza–Del, Inc. Doing Business as Eurostar Café and Pizza–Del, and 45th Street Bake Corp. Doing Business as Eurostar Café, Respondents.

Supreme Court, Appellate Term,
Second Dept., 2, 11 & 13 Judicial Dist.

Oct. 16, 2013.

[977 N.Y.S.2d 555]

Jeffrey B. Melcer, PLLC, New York City (Jeffrey B. Melcer of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York City (Michael P. Kandler of counsel), for Madison 45 Company, respondent.

Marshall Conway Wright & Bradley, P.C., New York City (Lauren Turkel of counsel), for Pizza-Del, Inc., Doing Business as Eurostar Café and others, respondents.

PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ.

Appeals from (1) an amended order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.; op 26 Misc.3d 1227[A], 2010 N.Y. Slip Op. 50280[U], 2010 WL 653985 [2010] ), entered April 29, 2010, and (2) a judgment of the same court, entered September 16, 2010. The amended order granted a motion by defendants Pizza–Del, Inc., Doing Business as Eurostar Café and Pizza Del and 45th Street Bake Corp. Doing Business as Eurostar Cafe, pursuant to CPLR 4404(a), to set aside a jury verdict on the issue of liability in favor of plaintiff and against them, and to dismiss the complaint insofar as asserted against them. The judgment, entered upon so much of an amended order of the Supreme Court, Kings County (Martin Schneier, J.), dated April 15, 2005 as granted the branches of a motion by defendant Madison 45 Company seeking summary judgment dismissing, insofar as asserted against it, so much of the complaint as sought to recover upon plaintiff's Labor Law §§ 200 and 240(1) and common-law negligence causes of action, and upon an order of the Civil Court, Kings County (Genine D. Edwards, J.), granting a motion by that defendant, pursuant to CPLR 4401, for judgment in its favor as a matter of law on the remaining cause of action, dismissed the complaint insofar as asserted against that defendant.

ORDERED that the amended order and judgment are affirmed, without costs.

On January 24, 1998, plaintiff, an employee of EMO Mechanical Corp. (EMO), was working in the basement of defendants Pizza–Del, Inc., Doing Business as Eurostar Café and Pizza-Del and 45th Street Bake Corp. Doing Business as Eurostar

[977 N.Y.S.2d 556]

Café (collectively Pizza–Del), using what he knew to be a highly flammable glue to affix aluminum panels to a wooden frame that was to house a commercial refrigerator-freezer. Pizza–Del leased the subject premises from the owner of the building, defendant Madison 45 Company (Madison), and had hired EMO to, among other things, affix the panels and install the refrigerator-freezer. EMO supplied the glue. Minutes after the bucket containing the glue was opened, a fire started in the basement, and plaintiff was injured.

Plaintiff commenced this action against, among others, Madison and Pizza–Del in the Supreme Court, Kings County, asserting causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and based on common-law negligence. In an amended order dated April 15, 2005, the Supreme Court, Kings County (Martin Schneier, J.), among other things, granted the branches of a motion by Madison seeking summary judgment dismissing, insofar as asserted against it, so much of the complaint as sought to recover upon plaintiff's Labor Law §§ 200 and 240(1) and common-law negligence causes of action. Plaintiff did not appeal from that order. The action was subsequently transferred to the Civil Court pursuant to CPLR 325(d).

At a jury trial, plaintiff testified that, shortly after his immediate supervisor had opened the bucket of glue, a flash fire had started. The walls of the basement, and boxes and plastic stored therein, ignited. He escaped from the basement via a stairway. Plaintiff also claimed that the basement contained a large amount of garbage. Plaintiff further testified that garbage, and a table that had fallen near the stairway, had impeded his egress from the basement. However, the Civil Court sustained an objection to that testimony.

An expert witness called by plaintiff testified that the absence of ventilation in the basement had caused the fire. The witness testified, in effect, that, had the basement been properly ventilated, vapors emanating from the glue would not have ignited. Plaintiff also sought to call as an expert a retired New York City fire marshal, who had investigated the fire pursuant to Penal Law § 265.26 and was prepared to testify regarding the cause and origin of the fire. The Civil Court precluded that witness from testifying.

Plaintiff also introduced testimony from excerpts of several depositions indicating that Pizza–Del's principal had previously hired EMO to perform the identical work—the installation of a commercial refrigerator-freezer, including affixing aluminum panels to a wooden frame—for another establishment he owned. In addition, Pizza–Del's principal and the owner of EMO had a conversation in the premises on the day of the incident, before the fire started. There was no testimony as to the subject matter of the conversation. Furthermore, Pizza–Del's principal testified that there was a water heater in the basement, which supplied hot water to the restaurant. He believed the water heater was operated with natural gas.

During the trial, the Civil Court sustained an objection, preventing plaintiff from reading to the jury certain questions and answers from the deposition of an employee of the building's management company, regarding whether routine inspections were performed of the premises leased by Pizza–Del from Madison.

After all sides had rested, the Civil Court determined that it would not charge the jury with respect to any alleged violations of Labor Law § 241(6). As a result, the Civil Court, among other things, granted Madison's motion for judgment as a matter of law on the remaining cause of

[977 N.Y.S.2d 557]

action, and dismissed the remainder of the complaint insofar as asserted against Madison. The jury rendered a verdict finding Pizza–Del negligent and that its negligence was a substantial factor in causing the accident. The jury also found that plaintiff was negligent, but that his negligence was not a substantial factor in causing the accident. The jury apportioned 100 percent of fault in the happening of the accident to Pizza–Del.

Pizza–Del then moved, pursuant to CPLR 4404(a), to set aside the verdict as a matter of law and to dismiss the complaint insofar as asserted against it. In an amended decision and order entered April 29, 2010, the Civil Court granted the motion (op 26 Misc.3d 1227[A], 2010 N.Y. Slip Op. 50280[U], 26 Misc.3d 1227 [2010] ). The court determined that Pizza–Del did not know nor should it have known of a dangerous condition based on the use of the flammable glue, and that the work performed by plaintiff was not inherently dangerous. The court further indicated that the storage of garbage in the basement and/or the failure to have a ventilation system were not, in and of themselves, unsafe or dangerous conditions.

Madison's assertion that the 2005 order of the Supreme Court, Kings County, which, among other things, granted the branches of Madison's motion seeking summary judgment dismissing, insofar as asserted against Madison, plaintiff's Labor Law §§ 200 and 240(1) and common-law negligence causes of action, constitutes the law of the case and is not reviewable on appeal, is without merit. Plaintiff's appeal from the judgment...